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301 THIS CHAPTER PROVIDES a descriptive overview of the providers of legal
services in New Zealand and the services they provide. In particular, it outlines:
• the legal information services provided by community groups, state agencies and the legal profession;
• the legal advice services provided by lawyers and community groups;
• the legal representation services provided by lawyers in private practice;
• the cost of lawyers’ services; and
• the basic features and current use of the civil legal aid scheme.
This information, together with women’s own descriptions of the barriers to their access to legal services (chapter 3), and the social factors which are part of the context for their experiences (chapter 4), provide the basis for the subsequent chapters’ analysis and recommendations.
302 The provision of legal services in New Zealand can be depicted as a pyramid. At the base of the pyramid is a large number of state sector, private sector and not-for-profit sector agencies and organisations which provide legal information to the public or to sectors of the public. Legal information may be defined as general information about the law, legal services and legal processes.
303 At the middle level of the pyramid is a smaller number of providers of legal advice; that is, law-related information which explains how the law and legal processes apply to a person’s particular situation. Legal advice may be provided either by qualified lawyers or by people who are sometimes referred to as “paralegals” – people whose training and experience in particular areas to which the law is relevant equips them to provide legal information. Lawyers in private practice are certainly the most numerous providers of legal advice, but some community organisations (including community law centres, citizens’ advice bureaux and women’s refuges) also play vital roles, either through the voluntary work of private lawyers and law students, through their own staff, or a combination of both means.
304 At the top of the pyramid are the providers of legal representation services; that is, advice to and advocacy on behalf of another person in a proceeding before a court or tribunal in which the person is a party. Here, virtually the only providers are qualified lawyers.[13] The vast majority of lawyers who provide representation services to members of the public are in private practice, working in law firms or as barristers sole.
305 Each part of the pyramid is looked at in this chapter. The role of lawyers in private practice is considered at the top level of the pyramid (in connection with the provision of legal representation services) because women generally said that private lawyers are not among the first people they would go to for legal information and legal advice (as defined in paras 303–304 above). Relevant to that point is the research conducted during the International Year of the Family (1994) which found that most people prefer to get information from community-based services. In particular, it found that:
• 7 percent of people felt least comfortable dealing with community organisations;
• 26 percent of people felt least comfortable dealing with professional, business or other service organisations; and
• 67 percent of people felt least comfortable dealing with government organisations. (International Year of the Family Committee 1994, 11)
306 Women’s Access to Legal Information (NZLC MP4, 33–41) described the range of legal information services available in New Zealand. In general terms, the hundreds of organisations that play some part in serving the needs of the public for legal information can be grouped into three categories:
• generalist providers;
• specialist providers; and
• targeted providers.
Each category is outlined in turn.
Generalist providers: generalist community groups
307 Making up the category of generalist providers are community groups offering general services to the public which are neither specifically focused on people’s legal needs nor on people’s needs in relation to a specific issue (such as family violence). Usually, generalist groups act as distribution points for information produced by others. Many also provide referrals to other service providers. The following paragraphs give a broad outline (rather than a definitive list) of the various kinds of nationally organised generalist groups, and list some of the locally organised groups.
(a) Nationally organised groups
308 There is a wide range of nationally organised generalist groups which provide community services relevant to such matters as health, housing, education, welfare and employment. Although the groups do not have a specific focus on legal needs, women who are connected to or know of these groups may well turn to them when faced with problems which have a legal dimension. That this occurs was evidenced by the attendance at the consultation meetings of representatives of many such groups and by their accounts of situations in which their women clients or members had experienced difficulties obtaining access to legal services.
309 The nationally organised groups may be categorised as follows:
• in a category of its own is the one generalist community information service – New Zealand Association of Citizens Advice Bureaux (CAB);
• there is a range of women’s groups (either for all or for particular groups of women), including Mäori Women’s Welfare League, National Council of Women, Pacifica, Women’s Division Federated Farmers, and YWCA;
• there are groups which cater to women and men in communities identified by their particular needs, such as Age Concern, Disabled Persons Assembly, REAP, IHC and Royal New Zealand Foundation for the Blind;
• there are groups with a church or religious base, including Anglican Social Services, Baha’i Faith, Catholic Social Services, Office for the Advancement of Women, Presbyterian Support Services and Salvation Army; and
• there are groups which provide general family-based services, including Barnardos New Zealand and Relationship Services.
310 Without detracting from the role of the other generalist community groups which provide legal information, it was clear that the women consulted in this study were most familiar with the information services of the CAB. For that reason, its services are described here.
311 There are 91 citizens advice bureaux throughout the country, staffed by some 2750 volunteers and 60 paid staff, most of them part-time. The bureaux deal with over half a million client inquiries a year, 73 percent of which are made over the telephone. In 1997, CAB launched an 0800 national telephone service (which links a caller to the nearest bureau) which, between September 1997 and August 1998, received more than 36 000 calls. A significant majority (70 percent) of bureau clients are women. CAB data collated by Colmar Brunton Research shows that Mäori , Pacific Islanders and Asians are well represented among bureaux users. (NZACAB 1997, 2–4; NZACAB 1998, 5–10)
312 The generalist nature of the CAB information services is reflected in the categories of inquiry bureaux receive. They include budgeting, hobbies, sports and leisure, health, entertainment, welfare services, practical and emergency help, and a wide range of law-related issues. Of the top 20 categories of inquiry recorded by the CAB in its 1998 annual report, at least half have some clear legal dimension. The CAB has also noted the increase in time-consuming and complex law-related inquiries, particularly in the areas of family, employment, tenancy and consumer law. (NZACAB 1997, 3; NZACAB 1998, 20)
313 Describing its clients’ reliance on the existence of more specialised providers, the CAB 1997 annual report states:
The information disseminated last year to bureaux from 49 government and statutory agencies and on behalf of 25 community agencies, assists our bureau workers to provide initial information for clients on an enormous range of subjects. As a generalist information service, we rely, however, on the availability of specialist agencies to provide more in-depth information and advice for our clients. (3)
314 About 50 of the 91 citizens advice bureaux play an active role in the middle level of the legal services pyramid by providing to members of the public free, weekly or monthly legal advice sessions of a few hours. Those who attend the sessions will each receive between 15 and 20 minutes of initial legal advice from local lawyers who have volunteered to be on the bureaux’ rosters. If further advice is needed, the lawyers can provide referrals. In addition, bureau workers who are asked for referrals will generally rely on the private lawyers in their roster “pool” either to take the clients or to provide referrals to other lawyers.
315 Not all bureaux have close links with local private lawyers. For example, at a meeting with bureau workers in one major provincial centre, it was said that the information on which they were making referrals was too general to meet clients’ needs for lawyers who would work well with people from a minority ethnic group or with women who were in abusive relationships.
(b) Local groups
316 Examples of the wide range of generalist community groups established in response to local needs throughout New Zealand include community centres, the Family Advocacy and Information Resource Centre (FAIR), Mäori women’s resource centres, Pacific Islands people’s resource centres, parent support groups, refugee and migrant services, welfare advocacy groups, and women’s centres.
Generalist community groups and legal information
317 Women’s Access to Legal Information collated and analysed the tangible information resources (pamphlets, videos, booklets, books and information sheets) that are publicly available on three topics about which women commonly said they need information: custody and access, domestic violence and civil legal aid. That paper also recorded the producers and distributors of the considerable number of information resources that were found. It was apparent that generalist community groups act primarily as distributors of whatever legal information they can obtain. Even when such groups produce their own information resources to meet their clients’ needs (for example, the information sheets produced by CAB and FAIR), it is likely to be a compilation of, or derived from, other legal information resources. (See NZLC MP4, 3–23)
318 Submissions made in response to the paper showed that some generalist community groups experience difficulties in obtaining legal information resources. A number of the groups, particularly local groups, said that they have to take the initiative in locating and acquiring information, and that if they do not know who and where the producers are (or know someone else who can tell them), then they cannot obtain it. It was evident that many groups rely on one another, and particularly on the CAB and community law centres, to find out about existing or new information resources.
319 There is a catalogue of legal information resources, Rarangi Rauemi, which is produced and updated by the Legal Services Board. It serves as a valuable resource for groups which both know of it and have the time and resources to request information from the various sources listed there. It was interesting, however, that the consultation paper, Women’s Access to Legal Information, served as an information resource for some generalist community groups. Several who responded to it said that they had not previously known of the existence of some of the resources listed there.
Specialist providers
320 Specialist providers are those who offer the public (or certain sectors of it) information about a particular type of problem or from a base of specialist knowledge. A range of community groups, state sector agencies and private sector providers make up this category.
Community groups
321 Specialist community information services include those offered by:
• the National Collective of Independent Women’s Refuges as well as by refuges not affiliated to the collective;
• the 24 local collectives around New Zealand which are affiliated to the National Collective of Rape Crisis and Related Groups of Aotearoa – Whanau Ahuru Mowai (which provide crisis counselling, long-term counselling, support, education and training for victims and perpetrators of rape and sexual abuse);
• the 67 Victim Support Groups (which offer 24-hour, 7-day-a-week support to victims of crime, accident and emergency, largely through the work of 1500 volunteers); and
• some employment-related groups, such as working women’s resource centres and people’s resource centres.
322 Apart from their role as distributors of legal information produced by others, many of these groups have a role in producing information about their own specialist services. This information may be distributed by others (particularly community groups and state agencies) to whom women might go. Of the groups listed above, women at the consultation meetings were most familiar with the services provided by women’s refuges. Again, without detracting from the services of other specialist community service providers, the services provided by women’s refuges are described here.
WOMEN’S REFUGES
323 Staffed by 159 paid and 478 unpaid workers, the National Collective of Independent Women’s Refuges Incorporated (NCIWR) has 53 affiliated or associate refuges. In addition, there are a few refuges which are not affiliated to the National Collective. Refuge services are aimed at meeting all the needs of women and their children which arise from the effects of violence, including 24-hour crisis support, emergency shelter, housing, counselling, community education programmes, income support, and legal protection services. Refuges work with women in the community as well as with those who use safe house emergency accommodation. (NCIWR 1998, 16)
324 Most of the National Collective’s 52 affiliated safe houses around New Zealand are available to any women and children who need emergency shelter. Some are for specific groups of women and their children, including nine safe houses for Mäori women, two for Pacific Islands women and one for Asian women. The one safe house in New Zealand for women with disabilities is not affiliated to the National Collective. Mäori women are disproportionately more likely to use refuge services than are non-Mäori women. Of all the admissions to safe houses in 1998, 44 percent of the women and 51 percent of the children were Mäori. (Communication with NCIWR, December 1998)
325 In the year ended 30 June 1998:
• the Refuge 24 hour Crisis-line received 295 692 telephone calls;
• 3060 women and 4779 children used the safe houses of National Collective refuges;
• 115 877 safe house beds were filled; and
• 3897 women and 5244 children used community services provided by National Collective refuges. (NCIWR 1998, 13, 17)
326 Typically, refuges have very good links with lawyers in their communities who can meet the needs of their clients. As well, refuge advocates (paid and unpaid) are trained to inform women of their legal rights and to provide support throughout the process of obtaining legal protection. (Communication with NCIWR, December 1998)
State sector agencies
327 At an overarching level, the state has general responsibility to provide legal information to the public. State obligations are discharged in varying ways by government departments, ministries and Crown-owned entities – through their policy and service-delivery roles and, increasingly, through the provision of government funding to community-based service providers. In Women’s Access to Legal Information, an outline was provided of the work of state sector agencies, including the New Zealand Community Funding Agency, the Community Organisation Grants Scheme, the New Zealand Lottery Grants Board, the Department for Courts, the Ministry of Justice and other government agencies. (NZLC MP4, 33–36)
328 For present purposes, to illustrate the disparate information services offered directly to members of the public by state agencies, an outline is provided of the information activities of some of the agencies which have service delivery roles likely to be of particular relevance to women. (The agencies provided the descriptions of their activities which are presented in the following paragraphs.) It will be recalled from the discussion in chapter 3 that women did not generally identify state agencies as being places they would approach for legal information relevant to problems in their lives. It was notable, however, that Mäori women spoke of Te Puni Kokiri (the Ministry of Mäori Development), and Pacific Islands women spoke of the Ministry of Pacific Island Affairs, as the places in government they would most likely approach for information on a variety of topics.
COURTS
329 The Department for Courts has communication advisers for each of its business units – Courts, Collections, Mäori Land Court, Waitangi Tribunal, and Corporate. Each has responsibility for developing communications with its stakeholders. This is done in a variety of ways. One of the primary means is the supply of written information on a wide range of topics, distributed through the courts and local agencies such as citizens advice bureaux. At an operational level, legal information pamphlets are often held in stands at the courts or are provided on request by court staff. Many of the department’s printed information resources about the Family Court, domestic violence and legal aid are available in the English, Mäori, Samoan and Tongan languages. The department also works with other agencies and organisations to maximise educational and information resources wherever possible.
330 Some courts have information staff or officers who provide general information to customers. There are 21 victim advisors working in 14 District and High Court centres to provide victims of offences with information about the justice system, the progress of their cases, how victims can participate in the court process, and other relevant services. At 24 of the 25 permanent Family Courts around the country, there is a Family Court co-ordinator whose role includes arranging counselling for Family Court customers and providing general information about the court. Co-ordinators are also responsible for responding to requests for information about court matters and for referring customers on to other organisations or services where necessary, including community law centres and Domestic Violence Act programmes. As well, they can provide clients with a list of lawyers specialising in family law. Co-ordinators also provide more general community education by organising and delivering talks about the court to community groups.
POLICE
331 The New Zealand Police tend to provide general legal information and education rather than specific advice. For example, they have a website; provide ongoing education campaigns such as Safer Communities Together and youth education services; and participate in the television programme Crime Scene. When members of the public request advice on a particular problem, the police provide pamphlets produced by other government agencies, and refer the person on to other agencies. Much of the information produced by the police, often in conjunction with others, is targeted at particular areas of crime. The Family Violence Project, for example, which is overseen by a co-ordinator, includes a public awareness campaign about family violence.
CHILDREN AND YOUNG PERSONS SERVICE
332 As a result of recent changes in the Department of Social Welfare, the Children and Young Persons Service (CYPS) is now merged in the new Children, Young Persons and Their Families Agency. Before the changes, CYPS provided information and referred people on to other agencies on a case-by-case basis. Mostly, information was provided by CYPS social workers in the course of their contact with the Service’s clients. In addition, CYPS provided general information about its services through posters, pamphlets and videos. It also ran broader public awareness campaigns in areas related to its work: for example, the campaign encouraging parents not to hit their children. It is expected that the new Agency will provide a similar information service.
TE PUNI KOKIRI
333 Te Puni Kokiri (the Ministry of Mäori Development) responds to requests for information from members of the public on a case-by-case basis. It publishes regular newsletters and papers which provide information on current issues, some of which relate to the law.
334 The Ministry of Pacific Island Affairs publishes a newsletter five times a year and provides information to members of the public as required. It has established a database of contacts, including Pacific Islands community groups and lawyers, so that callers may be referred to them.
OTHER INFORMATION SOURCES
335 Of the other state sector agencies, the Ministry of Consumer Affairs, which ran a toll-free Consumer Advice Service until 1997, now provides consumer educational information targeting low-income Mäori and Pacific Islands’ consumers, and provides resources to citizens advice bureaux, Budget Advisory Services and community law centres to support their provision of consumer advice to the general public. The Industrial Relations Service within the Department of Labour warrants mention for its 0800 telephone information service which received over 170 000 calls in the year to 30 June 1998. Where there is a complaint that minimum employment conditions have been breached, labour inspectors may investigate the matter.
336 Finally, the public education role of some Crown-owned entities, especially the Human Rights Commission, must be noted. The Commission provides information on human rights issues, and can provide education and training resources and other materials in schools, workplaces or community groups. One of its recent initiatives has been the development and delivery of training in human rights law to groups of people with disabilities so that they can act as resource people in their communities. In addition, the Commission is authorised to investigate complaints of discrimination or other breaches of human rights legislation.
Private sector organisations
337 Women rarely mentioned private sector people or organisations as being among the places they had gone to, or would go to first, for legal information. A very small number of women said that they had contacted, or knew that they could contact, a district law society to get a referral to a lawyer. Community groups were more likely to have used a law society to obtain legal information; particularly the New Zealand Law Society’s 14 Law Awareness pamphlets, which were well known among nationally organised community groups. Not all groups were aware of the law societies’ other information resources, however. For example, three nationally organised generalist community providers said in their submissions in response to Women’s Access to Legal Advice and Representation that they did not know that the Wellington and Auckland District Law Societies produce directories of legal services providers.
Targeted providers
338 The third category of legal information providers are those which specifically target their services to meeting legal information needs. Community law centres, which provide free legal services to the public, are the only groups in this category. Most of the law centres provide not only legal information (as defined in para 302), but also legal advice (as defined in para 303). Accordingly, they have roles to play in both of the lower levels of the legal services “pyramid”. Far less commonly, law centres provide legal representation services.
Community law centres
339 In February 1992, when the Legal Services Act 1991 took effect, there were 11 community law centres in New Zealand, nine of which received funding from the Legal Services Board in its first year of operation. Now there are 19 law centres funded by the board. Each centre is focused on the needs of its own community and so provides, within the limits of its budget and its access to unpaid assistance from local lawyers and other volunteers, a range of legal services targeted at those needs. Most centres have an exclusively local focus, but two have a national focus as well – on the legal needs of young New Zealanders and of Mäori respectively.
340 With five law centres in the greater Auckland area, three in the Wellington area, and two each in Christchurch and Dunedin, the remaining seven centres are thinly spread throughout the country. They are to be found in Blenheim, Hamilton, Hastings, Invercargill, Masterton, Rotorua and Wanganui. For the year ended June 30 1998, the Legal Services Board allocated $3.575m from the Special Fund (see further, chapter 6, paras 407–408) to fund the core activities of the 19 community law centres. The law centre budget for the 1998/99 year is $4.5m. It is likely that up to four new centres will be established before 30 June 1999. (Legal Services Board Annual Report 1998, 11, 16)
341 All of New Zealand’s community law centres are situated in urban areas. Typically, their premises are located near the centre of town and are decorated and appointed to be as welcoming as possible to the client groups in the communities they serve. In addition to the legal information and further services provided by the centres’ own staff, the great majority of law centres have very good links with local lawyers and, primarily, provide legal advice to members of the public through a roster system by which lawyers (and law students) come to the centre at appointed times each week to provide free, initial, 15 to 20-minute advice sessions. The centres’ networks with local lawyers enable them to refer clients on for legal services that they cannot themselves provide because of their operating conditions or staff resources.
342 Although generalisations about the work of law centres are difficult to make because each law centre exists to serve its own community’s unmet legal needs, all have a strong focus on providing legal information to their communities. They also foster links with other community service providers so that appropriate referrals can be made. Their different levels of staff and financial resources, as well as their different stages of development since establishment, mean that there are substantial variations in the level of services provided.
343 Most centres have both a direct role (through work with individual clients) and an indirect role (through education and training) in meeting legal information needs in their communities. Some centres are particularly active in paralegal training; that is, training other community workers to provide legal information to their own clients.[14] Some have significant “outreach” capacity: travelling or offering an 0800 telephone service to people outside the immediate area. Some have a specific focus on Mäori communities. Most have strong links with other community-based and state agency providers of social services.
344 Some law centres employ only paralegal staff, but most also employ at least one lawyer to provide legal advice and further services to clients. The New Zealand Law Society database shows that, late in 1998, there were 27 lawyers employed by community law centres around the country. Some of those lawyers, along with the centres’ paralegal staff, provide advocacy or support services in a limited range of legal proceedings, particularly tribunal proceedings. Three of the 19 law centres have operating conditions, approved by the local district law society, which enable them to undertake certain types of legal aid work for their clients. Only one centre, in Mangere, where there are no local lawyers, provides a comprehensive range of legal services to members of its community.
345 There is a variety of reasons why community law centres have not been established in more areas of New Zealand. One reason is that the thin geographic spread of the population in some parts of the country does not necessarily make the law centre, with its permanent premises and office hours (plus weekend and evening sessions), the most appropriate model for meeting people’s needs for legal services. In recognition of this, in 1998 the Legal Services Board established a nine-month pilot project in Te Tai Tokerau by which six trained outreach community workers (paralegals) are rostered to attend at various community premises, including marae, throughout the Far North on a weekly (or in some cases monthly) basis. Local lawyers are rostered to receive 0800 telephone calls from these workers and their clients, and are also available to travel, as required, to meet with clients and provide one hour’s legal advice free of charge. The lawyers are paid at legal aid rates, and other fixed fees are set for responding to 0800 calls and for travel. The outreach workers are paid a fixed hourly rate of $25. In October 1998, a similar project got underway in Nelson.
346 Although lawyers in private practice are by far the most numerous providers of legal advice in New Zealand, their profile and the nature of their services are considered in the next section, in connection with legal representation services, where their predominance is even greater. Here, the focus is on those who provide legal advice to the public on other than commercial terms or the terms of the legal aid schemes.
347 The two main providers of legal advice outside the private lawyers’ market are citizens advice bureaux and community law centres. As has already been outlined, the bureaux’ advice sessions depend on the volunteer services of local lawyers. The law centres’ advice sessions, conducted by volunteer lawyers and law students, are supplemented, to varying degrees, by the centres’ own legal and paralegal staff.
348 In some parts of the country, private lawyers are using different methods of providing free legal advice on a regular basis to members of the public. For example, in response to local demand, especially from Pacific Islands women, an Otahuhu firm of women lawyers allocates one lawyer for half a day each week to provide free advice at the firm. Also in Auckland, a medium-sized firm provides a free on-campus service to students and staff of Auckland University. For two hours each afternoon during term time, a solicitor is available to give 20-minute consultations, and students receive a 15 percent discount on further services. In Lower Hutt, a local firm provides free family law advice for two hours each Wednesday. Also in Lower Hutt, two women lawyers provide free advice at the local women’s centre on one Saturday morning each month.
349 In the wider Hutt Valley area, a recent initiative of the Hutt City Council’s Community Services Division has seen the publication of a 20 page Directory of Legal Advice Services in the Hutt Valley (1998), the costs of which were partly funded by the Legal Services Board. That directory reveals that 17 local firms provide free telephone legal advice.
350 In addition, some law firms provide new clients with a free or discounted first appointment, although this practice seems to be extremely variable and little publicised. For example, of the more than 11 pages of entries in the 1998 Wellington Yellow Pages for “Lawyers” and “Barristers and Solicitors”, only five law firms mention that the first interview will be provided free or at low cost ($10). In the late 1970s and early 1980s, the New Zealand Law Society instigated, and publicised, a LawHelp scheme under which participating law firms provided a new client’s first appointment for free or for $10. In the questionnaire circulated by the project team to lawyers around the country, it was asked whether they participated in LawHelp. Fifty of the 203 lawyers who responded said that they did, and a further eight lawyers said they provided free or discounted first interviews but did not identify that as a LawHelp service. Some lawyers who completed the questionnaire said that they did not know what LawHelp was. Others who said that they did offer the service commented that it was not well used. Only one said the firm advertised its free first appointment service. Most said that clients learned about it from local community law centre or citizens advice bureau workers.
351 Further, law societies run occasional public relations and educational campaigns (for example, the New Zealand Law Society’s Law Week in 1992, the Wellington District Law Society’s Mediation Week in 1996, the Auckland District Law Society’s Mediation Month in 1998) in which some members of the public will be able to obtain free legal advice.
352 All the services mentioned above can be advertised to potential clients, even if some are not well publicised. What cannot be advertised, because it is a matter for individual law firms’, and lawyers’, discretion, is that lawyers will and do provide free or discounted services to particular clients or in particular circumstances. The extent of this practice is difficult to gauge. Lawyers’ answers to the project’s questionnaire indicate that many provide some free services, especially when giving general information or “one-off” advice on the telephone or to a person who does not return for further help. They also indicate that some lawyers may not charge for all the time they spend on clients’ matters, especially when the work is for legal aid clients or others who are not well off, or requires research on unfamiliar areas of law.
Lawyers in private practice
353 The most comprehensive range of legal services offered to New Zealanders are those provided by lawyers in private practice, who are paid either by their clients directly or through criminal or civil legal aid. Their services range from advice to legal representation and a wide range of transactional services (of which property leasing and conveyancing are common examples).
354 The Law Practitioners Act 1982 (s 56) provides that, in order to act as a barrister or solicitor, a person must be qualified to be, and be, admitted as a barrister and solicitor of the High Court and hold a current practising certificate issued by a district law society. The result of this regulatory scheme is that there are many circumstances in which members of the public who wish to invoke the justice system’s processes must obtain the services of a qualified lawyer. For example, only a qualified lawyer can represent a party in proceedings in most courts, including the Family Court.
The cost of lawyers’ services
355 There is no single definitive source for the cost of all lawyers’ services in New Zealand. However, an indication of lawyers’ costs can be gleaned from the Profession Report 1998 (Management Research Centre, 1998). Based on responses from 165 self-selected respondents to a Practice Survey, that report shows that the median rate charged in 1998 for principals’ time was $196 an hour, and for employed solicitors’ time $137 an hour. These rates included an allowance for business expenses like salaries, wages and other overheads.
356 As noted in chapter 4, the 1996 Census shows that 58 percent of New Zealanders (including 70 percent of New Zealand women and 45 percent of men) have personal incomes of less than $20 000 a year. An annual income of $20 000 provides a gross weekly income of $385 – an amount which would buy two hours of a principal’s time.
357 The main response to the high cost of access to civil justice is the state-funded legal aid scheme, which pays all or part of the costs (lawyers’ fees and associated costs) incurred in civil proceedings by low-income earners who are eligible for aid. That scheme is outlined at paras 387–395. The responses to the cost barrier that are made by community-based legal service providers, individual members of the legal profession and law firms have already been outlined.
Lawyers’ services: a profile of providers
358 As outlined in chapter 3, the women consulted in this study saw lawyers as an elite group of people who are highly educated, highly paid, mainly male, overwhelmingly Pakeha and largely city-dwelling. The following statistical information confirms that general image.
LAWYERS ARE HIGHLY EDUCATED
359 Compared to the population at large, lawyers are highly educated. Only 8.6 percent of New Zealand men and 5.9 percent of women have a tertiary qualification of any kind, and every New Zealand lawyer is in that group. Further, law is a specialised discipline, with some status attached to it. About 1 in 200 New Zealand adults (0.5 percent) has completed a law degree, and this includes all those who are now retired or who have never worked as lawyers. (Statistics NZ, 1996 Census of Population and Dwellings)
HIGHLY PAID
360 Lawyers, generally, are a well-paid group. The New Zealand Law Society Poll of Lawyers shows that, in 1996, newly employed lawyers (with up to two years’ work experience) received an average income of $31 000. At that point in his or her legal career then, the average lawyer, who is likely to be about 25 years old, is already in the top 30 percent of New Zealand income earners. The average income of an employed lawyer with between six and 10 years experience was $56 200. For principals, those with up to five years’ experience had an average income of $46 000. Thereafter, principals’ average incomes exceeded $100 000, peaking at an average of $147 900 for principals with between 16 and 20 years’ experience. (Poll of Lawyers, 184)
MAINLY MALE
361 New Zealand Law Society figures as at August 1998 show that just under one-third of the 7757 lawyers with current practising certificates are women. However, women make up a slightly smaller proportion (29.5 percent) of lawyers working in law firms and a smaller proportion again (27 percent) of those working as barristers sole. This is because women lawyers are over-represented in government and other employment arenas outside private legal practice. In terms of numbers, there are:
• 5693 lawyers working in law firms (1681 women and 4012 men);
• 746 barristers sole (200 women and 546 men); and
• 1318 lawyers in “other” occupations (667 women and 651 men).
OVERWHELMINGLY PAKEHA
362 At the time the New Zealand Law Society last sought information about the ethnicity of members, there were 7585 lawyers with current practising certificates. Of those, 1128 (15 percent) declined to provide information about their ethnicity. Of the remaining group of 6457 lawyers:
• 5608 (87 percent) identified themselves as Pakeha;
• 199 (3 percent) identified as “other European”;
• 119 (1.8 percent) identified as Mäori ;
• 46 (0.7 percent) identified as Pacific Islanders;
• 194 (3 percent) identified as Asian;
• 291 (4.5 percent) identified themselves in some other way, mostly in terms which indicate some mixture of ethnic origins.
CITY-DWELLING
363 New Zealand Law Society figures, and those from the 1996 Census, show that the average lawyer to population ratio for the whole country is very close to 1:500. There are, however, substantial disparities in the ratios in different parts of the country. The Census shows that, of the 74 territorial districts in New Zealand, only eight have lawyer-to-population ratios which are more favourable than the national average of 1:500. All eight are cities: Wellington City, Auckland City, North Shore City, Hamilton City, Lower Hutt City, Christchurch City, Dunedin City and Invercargill City. With one lawyer for every 119 residents, Wellington City has the highest proportion of lawyers in the population. Next is Auckland City, with one lawyer for every 188 residents. These figures are not truly comparable, however, as a higher proportion of lawyers in Wellington than elsewhere are working in government rather than private practice.
364 At the other end of the scale, there are 42 territorial districts in New Zealand which have, at most, one lawyer for every 1000 residents. Thirteen of those districts have, at most, one lawyer for every 2000 residents. The eight districts with the lowest proportion of lawyers in their populations are the Districts of Waimate, Hauraki, Wairoa, Southland, Kawerau, Hurunui, Mackenzie and Chatham Islands.[15]
Lawyers’ service: public views and lawyers’ views
365 In 1996, the New Zealand Law Society commissioned three polls (of lawyers, the public, and law firms) which asked for responses to a list of statements about lawyers’ values, skills, knowledge and other matters relevant to the quality of the services they provide. The public poll, of 500 randomly chosen adults (255 women and 245 men) throughout the country, was conducted by telephone in English. The polls of lawyers and law firms were conducted by written questionnaire. The profile of the 670 lawyers who responded to the Poll of Lawyers, in terms of their employment status and their sex, provides a reasonable match with the profile of the profession as a whole. The responses from the 208 firms which responded to the Poll of Law Firms were weighted to achieve a match with the profile of the 1285 various sized firms nation-wide. (Poll Summary, 73–81)
366 The poll results were released in 1997. Overall, they showed that lawyers were more pessimistic about the public’s view of the legal profession generally than was justified. They also showed that the members of the public who had ever consulted lawyers, (376 of the 500 people polled (75 percent)), consistently rated their own lawyers’ performance more highly than all 500 rated the performance of the legal profession generally. (Poll Summary, 13–20)
367 The polls reveal, however, that in a number of important matters relating to the accessibility and quality of the legal profession’s services, public confidence is not high. For example, some of the matters which only 35 percent to 55 percent of the public made responses favourable to the profession related to lawyers:
• explaining things well enough (55 percent);
• being concerned about meeting the community’s needs for legal services (54 percent);
• giving good value for money (41 percent);
• always being as knowledgeable as they should be (38 percent); and
• taking a long time to do things (36 percent). (Poll of the Public, 13)
368 The matter on which the public gave the least favourable response related to the cost of lawyers’ services. Only 8 percent of the public thought that lawyers are not expensive to use. (Poll of the Public, 13)
369 The polls also show that lawyers’ own views of the quality of service provided by the profession (as opposed to their estimation of the public’s view of the profession’s service quality) are, in some respects, particularly negative. For example, 50 percent or fewer lawyers gave responses favourable to the legal profession with regard to lawyers:
• being approachable (50 percent);
• being proactive on their clients’ behalf (42 percent);
• explaining things well enough (36 percent);
• being concerned about meeting the community’s needs for legal services (34 percent);
• putting clients off to someone more junior and less experienced (31 percent);
• taking a long time to do things (28 percent);
• keeping their clients well informed on legal matters of importance or interest (25 percent);
• being expensive to use (18 percent);
• always being as knowledgeable as they should be (9 percent). (Poll of Lawyers, 62–63)
370 Lawyers had a more favourable view of the profession than did members of the public on six matters, namely that lawyers:
• are professional (8 percent of lawyers agreed, 87 percent of the public agreed);
• are interested in getting a good result for their client (90 percent of lawyers agreed, 83 percent of the public agreed);
• can be trusted with your money (75 percent of lawyers agreed, 48 percent of the public agreed);
• compete vigorously with one another (66 percent of lawyers agreed, 45 percent of the public agreed);
• give good value for money (61 percent of lawyers agreed, 41 percent of the public agreed);
• are expensive to use (18 percent of lawyers disagreed, 8 percent of the public disagreed). (Poll of Lawyers, 61, 63)
371 Further, while members of the public who had consulted lawyers had much more favourable views of their own lawyers than the entire group had of the profession generally, they were least satisfied with their own lawyers (as were members of the public generally, in relation to the profession as a whole) in relation to:
• the cost of the lawyers’ services (only 43 percent thought their own lawyer was not expensive to use while 74 percent thought their lawyer gave good value for money);
• the time their lawyers took to do things (75 percent thought their lawyer did not take a long time to do things); and
• the sufficiency of their lawyers’ explanations of things the clients wanted to know (79 percent were satisfied that their lawyers had explained things to them well enough). (Poll of the Public, 81)
372 Another section of the Poll of the Public asked if there had ever been a time when any of the 500 respondents thought they could have used a lawyer’s help but did not obtain it. Just under a third of the group (32 percent), or 160 people, said there had been such a time. When they were asked why they had not obtained a lawyer’s help, 56 percent said that that one reason was their perception of the cost of doing so. Women were considerably more likely than men to identify this as a reason for not having obtained a lawyer’s help, with 66 percent of the women in the group, compared to 49 percent of the men, mentioning the cost of lawyers’ services as a reason. The next most commonly mentioned factor, which 26 percent of the respondents identified, was that they had preferred or managed to sort their situations out themselves. (Poll of the Public, 61–63)
Lawyers’ services: specialist providers – family lawyers
373 Women’s main concerns about their access to justice arose in connection with family problems and, less commonly, criminal matters in which they or, more usually, male family members were involved. (In 1997, women made up 15.9 percent of all defendants in criminal proceedings in New Zealand. (Ministry of Justice, Conviction and Sentencing of Offenders in New Zealand: 1988 to 1997)) Not all lawyers provide advice and representation services relevant to family and criminal matters. This reduces the pool of lawyers available to assist people who are involved in these kinds of proceedings. Also, not all family and criminal lawyers are willing to undertake legal aid work, which further limits the pool of lawyers available to legally aided clients.
374 The recent establishment of the Family Law Section of the New Zealand Law Society has provided the opportunity to collect some information about lawyers who do family law work. The Society’s records show that, as at May 1997, when 6300 lawyers responded to a request for information about their areas of practice, nearly 40 percent (or 2586 lawyers: 1682 men and 927 women) said that they did some family law work. The majority of those lawyers (1584 lawyers: 1226 men and 361 women) said they spent between 1 percent and 25 percent of their time on family law work. The other 1002 lawyers (456 men and 566 women) spent more than 25 percent of their time on family work. Accordingly, the figures indicate that, proportionate to their numbers in the legal profession, women are over-represented among lawyers who do family work and, particularly, among lawyers who spend at least one quarter of their time on family work.
375 An indication of the workload of New Zealand’s family lawyers can be gleaned from the number of new applications made to the Family Court each year. In the year to 30 June 1998, the number of applications filed in each of the categories recorded by the court was as follows:
TABLE 1: Family Court Applications 1997/98
substantive applications (custody and access) 19 906
care and protection (Children, Young Persons,
and Their Families Act) 1 591
protection orders (Domestic Violence Act) 7 242
dissolutions of marriage 10 036
Total 38 775
Annual Report: Department for Courts for year ended 30 June 1998, 71
A further 3779 applications were filed under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
Civil legal aid: basic features of the scheme
376 The civil legal aid scheme operates at the top level of the legal services pyramid. The remaining sections of this chapter summarise the basic features of the civil legal aid scheme, outline the proceedings for which it is used, profile civil legal aid lawyers, and profile those who use it.
A judicare model
377 New Zealand’s legal aid schemes are known as “judicare” schemes. They create a partnership between the state and the legal profession. The state’s role is to fund the lawyers’ and other costs of the proceedings that are pursued or defended by citizens who are eligible for aid. The legal profession’s role is to provide, at a discounted price, the legal services that those people need. In civil proceedings, eligibility is determined according to criteria relating to applicants’ financial situation, the type of proceedings in which they are involved and the merits of their being involved in those proceedings.
378 The judicare model of delivering legal aid was described in the Department of Justice’s 1981 research and discussion paper on access to the law as “but a small extension of the existing services provided by private practice”. (Access to the Law, 1981, 157) The paper was critical of the capacity of the judicare model to respond to the range of barriers which low-income New Zealanders may face in attempting to obtain legal services, especially the barriers posed by poor knowledge of the justice system. More graphically, a 1995 Canadian report states:
Under the judicare model, private lawyers who handle a few legal aid cases along with their better-paying ones stay in their offices in the business section of town and passively wait for legal aid clients to come to them. (National Council of Welfare, 1995, 29)
379 In other jurisdictions comparable to our own – for example, in Australia and Canada – the judicare method of delivering legal aid services is supplemented by another method of delivery: the “staff model”, under which lawyers employed directly by the legal aid scheme provide legally aided services to the public. New Zealand makes no use of this method of delivery. Another supplementary method of delivering legal aid services is the “community clinic model”, which uses staff lawyers who work for independent neighbourhood law offices (or community law centres) run by boards made up of legal professionals and members of the community. In New Zealand, some use is made of this last model, with three of the 19 community law centres being able, under their conditions of operation, to provide a limited range of legally-aided services to their clients.
Demand-driven expenditure
380 The criteria which govern eligibility for civil legal aid (see chapter 7, paras 479–487) are such that there is no ceiling on the state’s responsibility to pay for the lawyers’ services and other services provided under the scheme. Instead, the annual amount for which the state is liable depends on a complex mix of factors which drive the demand for legal aid, including New Zealanders’ income levels and their ability and propensity to litigate. Of particular importance in the mix is the condition of the justice system and of the law which is applied there, and the impact of this upon low-income people’s need or ability to resort to the courts and tribunals for proceedings in which aid is available. For example, before 1981, it was a requirement of the Department of Social Welfare that a person wishing to establish entitlement to a domestic purposes benefit bring maintenance proceedings against the other parent, even if the parents were not in dispute. In the first five months’ operation of the liable parent contribution scheme, which largely replaced the need for litigation with an administrative procedure, the number of applications for legal aid in “domestic proceedings” fell by 37 percent and the total number of applications fell by 17 percent. Two years later, the liable parent scheme was credited with causing a major part of the 15 percent decline in the total number of applications for civil legal aid between 1982 and 1983. (Access to the Law, Final Report, 1983, 47)
381 As a result of the demand-driven nature of legal aid expenditure, the state guarantees to fund its costs whatever they may be, although naturally it needs to predict and budget for them, and be satisfied that the money is well spent. The Justice and Law Reform Committee of Parliament provided a helpful explanation of, and comment upon, this feature of legal aid in its 1996/97 Financial Review of the Legal Services Board:
Entitlement to civil and criminal legal aid is guaranteed under sections 4 and 19 of the Legal Services Act 1991. The Board is in a relatively unusual situation in that if an application for aid meets the criteria of the Legal Services Act, the district subcommittee is obliged to grant the aid. Given that aid is demand-driven, the Board has only a limited ability to control actual expenditure. The Act prohibits the Board from interfering with or restricting eligibility and grant decisions made by Registrars and subcommittees.
. . .
We note that expenditure on legal aid could be seen as “inevitable expenditure” in order to provide quality access to representation and knowledge which empowers people who would otherwise not receive them. (1996/97 Review, 3)
382 In the year to 30 June 1998, the total expenditure on civil legal aid was $40.32m. That amount excludes the Legal Services Board’s liability for grants made but not invoiced before 30 June 1998. (Communication with Legal Services Board, February, 1999)
Recovery of costs
383 Another general feature of the civil legal aid scheme is that aid is made available on the terms that recipients who can repay some or all of the costs of the proceedings which are brought or defended on legal aid will be required to do so. Although the Legal Aid Act 1969 contained contribution and recovery mechanisms, it was widely publicised both before and after the Legal Services Act 1991 came into force that a more rigorous approach to recovery from aid recipients would be pursued under the new Act. Such publicity, perhaps coupled with the 1991 Act’s more extensive means of recovering costs, has led to the current civil legal aid scheme being widely known as one which makes aid available as “a loan not a grant”. In fact, recoveries from civil legal aid recipients accounted for 9 percent of the total annual costs of the civil scheme in the 1997/98 year. (Recoveries made on criminal legal aid that year accounted for some 0.33 percent of its costs.)
No aid for advice
384 It is widely accepted among legal services providers that early advice can provide the “stitch in time” which will prevent some problems from escalating to the point where further intervention becomes inevitable. In light of women’s economic circumstances (see chapter 4), the availability of free or low-cost services is of particular relevance. However, civil legal aid is not available for legal advice which is unconnected with court or tribunal proceedings. Instead, it is available to people who meet financial and other criteria (see chapter 7) to sponsor the cost of representation provided by qualified lawyers. Representation by a solicitor and, if necessary, a barrister (counsel) is defined to include:
all assistance usually given by a solicitor or counsel in the steps preliminary or incidental to any proceedings or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings. (Legal Services Act 1991, s 20)
385 Legal advice appears to have been excluded from the civil legal aid scheme in the original 1969 Legal Aid Act for fear of the costs that might otherwise accrue to the state. The Legal Services Act 1991 established the means to fill part of the gap in the civil legal aid scheme’s coverage of legal advice. It did this by providing for community law centres, law-related public education, and research and pilot schemes related to legal services to be funded out of the New Zealand Law Society’s Special Fund, which is made up of the interest paid by banks on monies held in solicitors’ trust fund accounts. (See further chapter 6, paras 407 and 408)
Civil legal aid lawyers
386 New Zealanders who are eligible for civil legal aid must find their own lawyers who are willing to act on legal aid. There is no obligation on lawyers to undertake civil legal aid work. The Ethics Committee of the New Zealand Law Society has advised lawyers that, if three conditions are met, they should apply for legal aid for any client who may be eligible for it. The conditions are:
• if the lawyers are prepared to work on legal aid rates;
• if the job is within their competence; and
• if they have the time to do the work. (LawTalk 483, 18 August 1997, 8)
The result is that lawyers who are not prepared to work on legal aid rates are not obliged to accept clients who may be eligible for legal aid.
387 In the year to 30 June 1998, 26 113 grants of civil legal aid were made – an increase of 2000 on the previous year.[16] Recent data from the Legal Services Board shows that some 1400 lawyers around New Zealand act for clients on legal aid. It is not known what proportion of those lawyers do civil legal aid work.
388 Further information about legal aid lawyers is provided by the 1997 New Zealand Law Society polls. The Poll of Lawyers shows that 29 percent of the 670 lawyers polled spent time on civil legal aid work each week. The average amount of time each of them spent was eight hours per week. (Poll of Lawyers, 34) The Poll of Law Firms shows further that of the 208 law firms polled:
• 28 percent would take any civil legal aid cases that came their way;
• 4 percent (mainly large firms of 11 or more partners and sole practitioners) would not do any civil legal aid work at all; and
• over half of the firms did not have a policy on the matter. (33)
That poll also indicates that approximately 18 percent of law firms’ income from civil legal work is covered by legal aid. (30)
389 The Legal Services Board’s 1997 research, Legal Aid Remuneration: Practitioners’ Views (Maxwell, Shepherd and Morris), enlarges the available information about the number and profile of legal aid lawyers in New Zealand. It found that, on average, there were 1.2 legal aid lawyers in each of the 510 New Zealand law firms randomly selected from the Legal Services Board’s “national vendor list” – the list the board keeps of all firms that have provided legal aid services. It found further that of the 439 lawyers surveyed in that research (82 percent of whom practised in civil matters):
• 63 percent were men;
• 37 percent were women;
• 89 percent were Pakeha, with 3 percent Mäori , 3 percent Pacific Islanders and 5 percent “other” ethnicities;
• the median age was 40 years, with 21 percent between the ages of 20 and 29 years;
• 58 percent of the junior and intermediate level lawyers were women (compared with 42 percent of the men) and 28 percent of the senior lawyers were women (compared with 72 percent of the men).[17] (Maxwell, Shepherd and Morris 1997, 13, 15, 64)
Civil legal aid: use of the scheme
Rising number of grants
390 Every year since the Legal Services Act came into force, there has been an increase in the number of grants made. Table 2 shows the number and average size of civil legal aid grants made in the last five years. As can be seen, until 1997, when there was also a substantial increase in the number of grants, the average amount of the grants was remarkably consistent.
TABLE 2: Number and Average Amount of Civil Legal Aid Grants 1994–1998
1994 1995 1996 1997 1998
Applications granted 18 234 19 294 19 619 23 920 26 113
Average remuneration $1663 $1523 $1590 $1732 $1935
Source: Legal Services Board Annual Reports and updated 1998 records
Family and mental health proceedings dominate
391 Research conducted for the Legal Services Board (on a sample of 2316 completed civil legal aid files opened in 1994 and 1995) shows that 86 percent of the proceedings were heard in the Family or District Courts, 12 percent in tribunals and 2 percent in the High Court. (AC Nielsen MRL, 48) Table 3 shows the types of proceedings for which aid was used and the percentage of the total sample represented by each type of proceeding.
TABLE 3: Proportion and Types of Civil Proceedings Brought or Defended on Legal Aid
Family
Custody and access 30 percent
Domestic Protection Act 7 percent
Guardianship/Paternity/Adoption 6 percent
Matrimonial property 3 percent
Children, Young Persons, and Their Families Act 1 percent
Combination 31 percent
Other family matters 1 percent
Other Civil
Mental health 12 percent
Immigration 2 percent
Employment 1 percent
Combination 1 percent
Other civil matter[18]4 percent
Not specified 1 percent
(AC Nielsen, MRL, 48)
392 While table 3 shows that family proceedings were 79 percent of the total
1994/95 research sample, there has been an increase in the number of legal aid grants for protection orders since the Domestic Violence Act 1995 came into force. Currently, 85 percent of civil legal aid expenditure is for Family Court work. (LawTalk 501, 6 July 1998, 7)
393 There is no data from which to determine the proportion of all family proceedings in which one party or both parties are legally aided. To assist in this matter the Legal Services Board, with the agreement of the Principal Family Court Judge, recently conducted a study of 1777 randomly selected proceedings filed in the four Family Courts in the Wellington region between 1 June 1997 and 31 May 1998. The study shows that recipients of legal aid were involved in the following proportions of proceedings in each Family Court:
• Porirua 57 percent (286 files from 502 involved one or more legally aided parties);
• Upper Hutt 48 percent (103 files from 214);
• Lower Hutt 44 percent (224 files from 508);
• Wellington 26 percent[19] (142 files from 553).
(Letter from CM Research (NZ) Ltd to Legal Services Board, 24 February 1999)
Although the study could not distinguish between cases in which one party is legally aided and those in which both parties are legally aided, the Legal Services Board considers that proceedings for protection orders are notable for the likelihood that both applicant and defendant will be in receipt of legal aid.
Recipients of aid
394 The 1994/95 research shows that women were 70 percent of legal aid recipients. The main group of recipients were “unemployed” women with dependants (78 percent of the women and 52 percent of the total). The research notes, however, that recipients define their own employment status when completing their applications for aid and that many who described themselves as unemployed were in receipt of a social welfare benefit. (AC Nielsen MRL, 3)
395 Of all the women aid recipients, 85 percent had dependants and, as noted, 78 percent of those women were “unemployed”. More than half (54 percent) of the men also had dependants and 45 percent of those men were “unemployed”. The great majority (91 percent) of recipients with dependants had at least one child under four years of age. On average, recipients had two dependants each. Most often, dependants lived with the aid recipients. Consistent with the high proportion of legally aided proceedings arising out of family breakdowns, 84 percent of recipients were either not married or not living with a partner. (AC Nielsen MRL, 4–5)
396 This chapter has described, in general terms, the providers of legal services in New Zealand and the services they provide. In particular, it has considered the “legal services pyramid” of legal information services (by the community, state and private sectors), of legal advice services (by lawyers and community groups), and of legal representation services (by lawyers in private practice). This includes a profile of the cost of private lawyers, and the basic features and current use of the civil legal aid scheme.
397 Against the backdrop of this overview, as well as women’s own descriptions of the barriers to their access to the justice system (chapter 3) and an outline of the social factors which provide part of the context for their experiences (chapter 4), the following chapter considers the legislative framework provided by the Legal Services Act 1991 under which legal information, law-related education and community-based legal services are delivered. Aspects of the civil legal aid scheme are examined in more detail in chapter 7, and the delivery of legal services by lawyers in private practice is canvassed in chapters 8 to 11.
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